Category: Family Law

  • Divorce in India

    This article explains all you need to know about getting a divorce in India.

    Marriage as opposed to relations of blood, is one which we enter into by our own choice and not by virtue of our birth. Conceptually Marriage is both a Sacrament & a Contract.  It is a contract because it is based on offer and acceptance and is akin to an agreement to live together. Sacrament because of it’s religious ties.

    As it is connected with the freedom of choice, sometimes we do make choices that do not turn out the way we would want them to be.

    Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear.  Since society in countries like ours takes special interest in protecting it – In our country to get a divorce one needs to prove certain grounds for eg : cruelty/adultery/desertion etc.  Known as matrimonial offences. (Crimes relating to marriage)

    A happy marriage is a harbour in the tempest of life an unhappy marriage a tempest in the harbour of life, more and more people are realising the reality of their relationships, and accepting divorce as the rational choice to a better life necessary premised on better relationships. It is no more a taboo and especially so in urban cities.

    Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested.

    Contested Divorce

    In this regard we follow the fault based system of divorce. Divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. The most common ground for divorce is cruelty (Simply such conduct as to make it impossible for parties to live together – this includes mental or/and physical torture). Another common ground is adultery (sexual intercourse outside wedlock) one instance of lapse of virtue can lead to divorce.

    Divorces are also common on grounds of desertion (simply wilful abandonment of one spouse by the other without reasonable cause/excuse). Apart from this Conversion of religion/Unsoundness of mind/Renunciation of world are also grounds for divorce.

    As per the law as it stands our legal system does not allow divorce to be granted on the ground of irretrievable breakdown of marriage or irreconcilable differences.(Known as no fault grounds). Call it impractical & absurd. To get a divorce one has to prove wrongdoing on the part of other spouse, and impeccable conduct of one’s own in order to win. Which is impossible sometimes. Legislature has taken note of this pragmatic reality and a bill on the same topic is pending in the Parliament, which would allow a person to seek divorce on ground of inherent incompatibility leading to breakdown of relationship.

    PROCEDURE OF GETTING A CONTESTED DIVORCE

    • Ascertain the ground on which you want to seek divorce.
    • Collect evidences.
    • Consult a seasoned divorce lawyer and file a petition in the Family Court of your district.

    HOW DOES YOUR CASE PROCEED ? AND HOW MUCH TIME DOES IT TAKE ONCE IT IS FILED IN THE COURT 

    Petition is filed in the court with all the relevant evidences/documents. Person filing the petition is called ‘the petitioner’ and erring spouse responding is ‘the respondent’. (Remember to annex all documents on you rely with the petition itself – Videos/Audio Recordings/Photos are documents within the meaning of evidence act, and admissible in evidence, your’s spouse emails/chats/facebook/twitter updates are also admissible to prove depravity/infidelity or whatever !

    After you file the petition in the court – erring spouse is summoned, if he/she turns up and enters appearance the matter is bi-parte, if the erring spouse prefers not to contest or come to the court, the matter is proceeded ex parte (in absence) and divorce granted if the matter is worthy of the same.

    • In case of bi-parte – the court normally would before seeking a reply from your spouse of the allegations levelled by you – would refer the parties to a mediation or conciliation, so that issues can be resolved amicably this way or the other. Whether leading to a reconciliation (living together) or an amicable divorce.
    • If the above fails, the erring spouse/respondent would file a Written Statement to your petition with the necessary documents (Normal time for filing a WS is 30 days (Max : 90 Days). Following which one can file a replication to further elaborate and explain.
    • Once that is done the court would frame issues – issues are questions that are to be decided by court at the time of final hearing. For eg : in a Divorce on the ground of adultery – the issues would be “Whether the respondent had sexual intercourse with X during the subsistence of marriage with the petitioner” ? The answer to this question would decide the fate of divorce case. There may be more than one issue in case of multiple grounds. The entire divorce proceedings are premised at answering this question/issue.
    • After issues are framed – the court would ask petitioner to lead evidence, his own or/and his witnesses. This also is decided into three stages. First petitioner would lead his witness and examine him. Thereby putting the foundation of his case. (Called examination in chief) Thereafter the opposite party would cross examine the petitioner’s witness. (Called cross examination) Cross examination includes exposing the falsity of a witness’s deposition by putting leading questions, and contradicting the witness. Witness may either withstand the onslaught of questions – thereby retaining the confidence and reliance of the court, or he may stand discredited.
    • The Party calling the witness is further given an opportunity to fill the holes the opposite party’s advocate has busted into it and make the court believe in it’s witness.

    The same process is repeated for each witness on either side. Once petitioner’s evidence is over, respondent leads his or her evidence. Please note petitioner/respondent/family members are all competent witnesses.

    Once evidences are over. The Court would finally listen to arguments of either side on the case, and then proceed to decide the case.

    On how the evidences are appreciated, to illustrate in a case based on cruelty the court would normally see whether on the totality of evidences led, is the conduct of respondent such as to make living together a practical impossibility ? Does it pose a great risk to physical or mental well being of the petitioner.

    The Court’s formal order in the end is known as the ‘decree’. After this either party may appeal in the High Court and then finally the Supreme Court.

    Normally the process in the Family Court would take anywhere between 2-3 years if contested vigorously. My experience has shown that parties normally lose patience somewhere in between and agree to part ways amicably. Because litigation does not really pay for anybody but the lawyers ! and that is the reason I advise my clients to go in for this only when the mutual option is unquestionably foreclosed.

  • In this interesting case – the Court convicted the man for murdering his wife, on the basis of following evidence – the chain of circumstantial evidence :-
    i) Motive (Suspected infidelity on part of wife – strained relations on that count)
    ii) Last Seen together.
    iii) Unnatural subsequent conduct.
    iv) killed wife at hotel – court matched his signatures on visitor’s book and vakalatnama in appeal and also matched in court u/s 73. 
    Supreme Court of India
    Ajit Savant Majagavi vs State Of Karnataka on 14 August, 1997
    Author: S S Ahmad
    Bench: M K Mukherjee, S S Ahmad

    PETITIONER:

    AJIT SAVANT MAJAGAVI

    Vs.

    RESPONDENT:

    STATE OF KARNATAKA

    DATE OF JUDGMENT: 14/08/1997

    BENCH:

    M. K. MUKHERJEE, S. SAGHIR AHMAD

    ACT:

    HEADNOTE:

    JUDGMENT:

    Present :

    Hon’ble Mr. Justice M.K. Mukherjee

    Hon’ble Mr. Justice S. Saghir Ahmad

    Mukul Sharma, Adv. for S.R. Bhat, Adv. for the appellant Ms. Manjula Kulkarni, Adv. for M. Veerappa, Adv. for the Respondent

    J U D G M E N T

    The following Judgment of the Court was delivered : J U D G M E N T

    S. Saghir Ahmad, J.

    Padmavathi, a house wife, in this case, has been strangulated to death, of all persons, by her husband, the appellant before us.

    2. BATTLE OF SEXES has always been a battle of wits. Today it is denuded of its charms. It has degenerated into a WAR involving physical violence, torture, mental cruelty and murder of the female, including particularly, the WIFE.

    3. Social thinkers, philosophers, dramatists, poets and writer have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked “I am glad that I am not a man; for then I should have to marry a woman”, there was wit in it. When Shakespeare wrote, “Age cannot wither her; nor custom stale; Her infinite variety”, there again was wit. Notwithstanding that these writers have cried hoarse for respect for “Woman”, notwithstanding that Schiller said “Honour Women! They entwine and weave heavenly rose in our earthly life.” and notwithstanding that Mahabharat mentioned her as the source of salvation, the crime against “woman” continues to rise and has, today undoubtedly, risen to alarming proportions.

    4. It is unfortunate that in an age where people are described as civilised, crime against “Female” is committed even when the child is in the womb as the “female” foetus is often destroyed to prevent the birth of female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a Mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.

    5. In this appeal, we have to deal with the unfortunate story of torture of a wife and her sudden and untimely death at the hands of a person who had promised to the God, before the altar of fire, to be her protector.

    6. The appellant was married to a young woman, by name, Padmavathi @ Janki, in or about April, 1984 in Belgaum Taluk. Her father was P.W. 8, Paris Savant Kaggodi who was, incidentally, also brother of appellant’s mother. Padmavathi, after bidding a-dieu to her father and other relations, came to live with the appellant in her new house where her parent-in-laws also lived. She became the victim of mental torture and cruelty for a charge, which, unfortunately, can be levied easily against any virtuous woman, that she was involved in extra marital relationship; in this case with one Gundu Badasad.

    7. On becoming pregnant, Padmavathi came back to her father’s house of performance of certain ceremonies connected with the pregnancy and continued to stay there till she delivered a mala child. The information of birth of the child was conveyed to the appellant and his parents but nobody, not even the appellant, came to see Padmavathi or the child although, in normal course, the birth of a male child has the effect of bringing smile even on a frowning face. Like a lull before the storm, this cold-shouldering was the precursor of the evils that were to befall Padmavathi.

    8. Four months after the delivery, the appellant suddenly, on a Saturday, came to the house of his father-in-law (P.W. 8) and sought his permission to take his wife and the child to a temple at Stanvanidhi which was a sacred and holy place for the Jains. The next morning, that is, on Sunday, the appellant, his wife and the child were seen off by his sister-in-law at the Bus Station where they boarded a Karnataka State Road Transport Corporation Bus and came to Halaga village where on Monday, at 1.00 A.M., the appellant, with his wife and child came to the house of a person named Gopal Bhimappa Inchal. The appellant told Gopal Bhimappa Inchal that on their return from the temple, they could not get the “Bus” and, therefore, they had come to this house for the night halt. As promised, the appellant with his wife and the child left the house in the early morning and came to “Ashoka Lodge” in Belgaum where he checked in Room No. 113 at 9.30 A.M. on 09.09.85. That was the most unfortunate, as also, the last day in Padmavathi’s life. At about 12.00 Noon, the appellant came to the reception counter of “Ashoka Lodge” and informed the people there that his wife has died of heart-attack and that he was going to bring his relations. he left the “Lodge”, with child in his lap, never to come back. Her gave the child to a lady called Gangavva, in village Halaga who, later, sent the child to Padmavathi’s father.

    9. The police was informed of the matter in due course which visited the “Lodge” and held the inquest. The body of Padmavathi was sent for post mortem examination which revealed that Padmavathi had died not because of cardiac arrest, but on account of asphyxia. Her death was homicidal.

    10. The police arrested, challenged and prosecuted the appellant, who was found “not guilty” by the trial court but the High Court, on appeal by the State, reversed the verdict and convicted the appellant u/s 302 IPC and sentenced him to life imprisonment. Now, the matter is before us.

    11. Learned counsel for the appellant has contended that the High Court should not have interferred with the judgment passed by the trial Court unless it was of the positive opinion that the judgment was perverse and that it had to be reversed for “substantial and compelling reasons”. It is contended that since substantive and compelling reason have not been indicated, the judgment of the High Court is liable to be set aside and that of the trial court is to be restored. It is also contended that even if all circumstance appearing against the appellant are taken into consideration, the cumulative effect of those circumstance does not lead to the irresistible conclusion that the appellant was guilty.

    12. Section 378 of the Code of Criminal Procedure 1973 which corresponds to Section 417 of the old Code provides for appeal in case of acquittal.

    13. There was quite a controversy among the Court with considerable divergence of judicial opinion as to the scope of appeal against an order of acquittal. This controversy remained unabated till some guideline was indicated by the Privy Council in Sheo Swarup & Ors. v. King Emperor, L.R. 61 Indian Appeals 398 = AIR 1934 P.C. 227(2). This decision was considered inSanwat Singh vs. State of Rajasthan, (1961) 3 SCR 120, in which the legal position was explained by this Court as under :-

    (1) The evidence upon which the

    order of acquittal was passed by

    the trial court can reviewed,

    reappreciated and reappraised by

    the Appellate Court.

    (2) The principle laid down by the

    Privy Council in Sheo Swarup & ors.

    v. King Emperor, L.R.. 61 Indian

    Appeals 398 (supra); provide

    correct guidelines for the

    Appellate Court while disposing of

    the appeal against the order of

    acquittal.

    (3) The words “substantial and

    compelling reasons”, “good and

    sufficiently cogent reasons” or

    “strong reasons” used by this court

    in its various judgments do not

    have the effect of curtailing power

    of the High Court to reconsider,

    review or scrutinise the entire

    evidence on record so as to come to

    its own conclusions in deciding the

    appeal against an order of

    acquittal.

    14. As a matter of fact, the power of the High Court are not different from its powers in an ordinary appeal against conviction. The additional burden which is placed on the High Court is that it has to consider each of the grounds which has prompted the trial court to pass the order of acquittal and to record its own reasons for not agreeing with the trial court.

    15. In State of Uttar Pradesh vs. Samman Das, AIR 1972 SC 677 – (1972) 3 SCR 58, this Court again reiterated the above principles and pointed out that there were certain cardinal rules which had always to kept in view in appeal against acquittal. It was pointed out that there is a presumption of innocence in favour of the accused especially when he has been acquitted by the trial court. It was further to be kept in view that if two views of the matter are possible. the view which favours the accused has to be adopted. The Appellate Court has also to keep in view the fact that the trial judge has the advantage of looking at the demeanour of witnesses and that the accused is still entitled to the benefit of doubt. The doubt should be such as a rational thinking person will reasonably, honestly and conscientiously entertain and not the doubt of an irrational mind. (See also : Sohrab vs. State of Madhya Pradesh, (1973) 1 SCR 472 = (1972) 3 SCC 751 = AIR 1972 SC 2020; Ediga Sanjnna vs. State of Andhra Pradesh, (1976) 2 SCC 210; Satbir Singh & Anr. vs. State of Punjab, (1977) 3 SCR 195 = (1977) 2 SCC 263; Chandrakanta Devnath vs. State of Tripura, (1986) 1 SCC 549 = 1986 Cr.L.J. 809; G.B. Patel & Anr. vs. State of Maharashtra, AIR 1979 SC 135; Awadesh & Anr. vs. State of Madhya Pradesh, (1988) 3 SCR 513 = (1988) 2 SCC 557; Anokh Singh vs. State of Punjab, (1992) 1 (Supp) SCC 426; Gajanan Amrut Gaykwad & Ors. vs. State of Maharashtra, (1995) 3 (Supp) SCC 607; Ram Kumar vs. State of Haryana, AIR 1995 SC 280; Betal Singh vs. State of Madhya Pradesh, (1996) 4 SCC 203).

    16. This Court has thus explicitly and clearly laid down the principle which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under :- (1) In an appeal against an order

    of acquittal, the High Court

    possesses all the powers, and

    nothing less than the powers, it

    possesses while hearing an appeal

    against an order of conviction.

    (2) The High Court has the power to

    reconsider the whole issue,

    reappraise the evidence and come to

    its own conclusion and finding in

    place of the findings recorded by

    the trial court, if the said

    findings are against the weight of

    the evidence on record, or in other

    words, perverse.

    (3) Before reversing the findings

    of acquittal, the High Court has to

    consider each ground on which the

    order of acquittal was based and to

    record its own reason for not

    accepting those grounds and not

    subscribing to the view expressed

    by the trial court that the accused

    is entitled to acquittal.

    (4) In reversing the finding of

    acquittal, the High Court has to

    keep in view the fact that the

    presumption of innocence is still

    available in favour of the accused

    and the same stands fortified and

    strengthened by the order of

    acquittal passed in his favour by

    the trial court.

    (5) If the High Court, on a fresh

    scrutiny and reappraisal of the

    evidence and other material on

    record, is of the opinion that

    there is another view which can be

    reasonably taken, then the view

    which favours the accused should be

    adopted.

    (6) The High Court has also to keep

    in mind that the trial court had

    the advantage of looking at the

    demeanour of witnesses and

    observing their conduct in the

    Court especially in the witness-

    box.

    (7) The High Court has also to keep

    in mind that even at that stage,

    the accused was entitled to benefit

    of doubt. The doubt should be such

    as a reasonable person would

    honestly and conscientiously

    entertain as to the guilt of the

    accused.

    17. It is in the light of these principle that it has to be seen whether the High Court, in the instant case, was justified in reversing the order of acquittal.

    18. Before taking up this task, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principle fact or “factum probandum” may be proved indirectly by means of certain inferences drawn from “factum probans”, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can legally inferred or presumed.

    19. It has been consistently laid down by this Court that were a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused of the guilt of any other person. (See : Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063; Eradu and other vs. State of Hyderabad, AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka, AIR 1983 SC 446;State of U.P. vs. Sukhbasi and others. AIR 1985 SC 1224; Balwinder Singh vs. State of Punjab, AIR 1987 SC 350; Ashok Kumar Chatterjee vs. State of Madhya Pradesh. AIR 1989 SC 1890).

    20. The circumstance from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusions drawn from circumstance, the cumulative effect of the circumstance must be such a to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

    21. In Padala Veera Reddy vs. State of Andhra Pradesh and others, 1991 SCC (Crl.) 407 = AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :- (1) the circumstance from which an

    inference of guilt is sought to be

    drawn, must be cogently and firmly

    established;

    (2) those circumstances should be

    of a definite tendency unerringly

    pointing towards guilt of the

    accused;

    (3) the circumstance, taken

    cumulatively, should form a chain

    so complete that there is no escape

    from the conclusion that within all

    human probability the crime was

    committed by the accused and none

    else; and

    (4) the circumstantial evidence in

    order to sustain conviction must be

    complete and incapable of

    explanation of any other hypothesis

    than that of the guilt of the

    accused and such evidence should

    not only be consistent with the

    guilt of the accused but should be

    inconsistent with his innocence.

    22. (See also : State of Uttar Pradesh vs. Ashok Kumar Srivastava, (1992) 2 SCC 86 = 1992 Cr.LJ 1104) in which it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inference, the one in favour of the accused must be accept. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

    23. What is important is that the possibility of the conclusions being consistent with the innocence of the accused must be ruled out altogether.

    24. Let us now delve into the merits.

    25. In order to prove its case, the prosecution has examined many witnesses to establish the link between the appellant and the crime. Paris Savant Kaggodi (P.W. 8) stated that his daughter Padmavathi was married to the appellant who was being ill-treated at the house of her in- laws principally because the appellant entertained a doubt that she was having extra marital relationship with Gundu Badasad. When Padmavathi became pregnant, she came to live with her parents and at the house of her parents, she gave birth to a child.

    26. The learned Session Judge and the High Court have both found that this part of the statement of Padmavathi’s father has not been challenged and, therefore, it was established that Padmavathi was not treated fairly at the house of her in-law and the appellant carried doubt in his mind that she was involved in post-marital sex with Gundu Badasad. It was also established that she gave birth to a child at the house of her father.

    27. The appellant, however, denied the prosecution story that he came to the house of his father-in-law and took away his wife and child. The trial court, namely, the IInd Addl. Sessions Judge, Belgaum has found that the prosecution had failed to establish that the appellant had come to the house of his father-in-law and requested him to take his wife and child to a temple or that, thereafter, he took his wife to the “Ashoka Lodge” at Belgaum where she was throttled to death by the appellant. The High Court, however, has reversed this finding and come to the conclusion that the death of Padmavathi, in Room No. 113 of “Ashoka Lodge”, at the hands of the appellant, was established by the fact that her dead body, which was identified by Mallasarja (P.W. 1) of Gandigawad village who was working at Belgaum, was found in that room. She had not died a natural death but was strangulated to death which was established by the post- mortem examination conducted by the Doctor (P.W. 12). Ajit (P.W. 2) who was the room-boy of “Ashoka Lodge” categorically stated that the appellant with his wife and the child had come to the “Lodge” and occupied Room No. 113. He also stated that the appellant later left the “Lodge” with his child on the pretext that his wife had died and that he was going to call his relations.

    28. It is contended by the learned counsel for the appellant that since P.Ws. 9, 14, 17 and 18 as also P.W. 3 had turned hostile and had not supported the prosecution case, their statements are liable to be excluded and if this is done, the result will be that the link in the prosecution story would stand broken and the appellant could not be held guilty on the basis of broken circumstantial evidence. The Addl. Sessions Judge had fallen into the web of this, apparently, forceful argument but the High Court, and in our opinion, rightly, accepted the remaining evidence and held that in spite of hostility of the aforesaid witnesses, the prosecution story was fully established.

    29. We would like to add a few words of our own on the effect of exclusion of statements of those witnesses who had turned hostile.

    30. Gangavva (P.W. 3), with whom the child was left by the appellant on his return from “Lodge”, was the witnesss who was treated as hostile. Even if her statement is excluded, the main part of the prosecution story that the appellant had come with Padmavathi to “Ashoka Lodge” where they had occupied Room No. 113 is not affected. Their presence in “Ashoka Lodge” is testified by Ajit (P.W. 2), the room-boy of “Ashoka Lodge”. Padmavathi was, therefore, last seen in the company of the appellant. The appellant left the “Lodge” on the pretext that his wife had died and he was going to call his relations. But he did no return. His conduct of not returning back to Room No. 113 eloquently indicates that he, in order to avoid arrest, did not return to “Lodge”. He left the dead body of Padmavathi lying in Room No. 113 to be found out there by the hotel and police people. An innocent person would not have behaved in that fashion. His innocence would have been reflected in his conduct of coming back to the “Lodge”.

    31. Apart from the appellant’s conduct in not returning to “Ashoka Lodge”, aft having left the “Lodge” at 12.00 Noon, another conduct of the appellant is significantly eloquent. When he reported at “Ashoka Lodge”, he was sporting a beard and had also unkempt hairs on his head. In the evening of the day of incident, he got his head and the beard shaved which is proved by the barber (P.W. 5), examined in the case. This was done obviously to the conceal his identity but police was vigilant and the appellant was apprehended without difficulty.

    32. The appellant’s further conduct in taking away the child with him at 12.00 Noon is also significant. The child was hardly four months old and was a breast-suckling infant. Had Padmavathi been alive, the appellant; would have left the child with her. His taking away the child with him coupled with his statement made to the room-boy that his wife had died of heart-attack, establishes that Padmavathi was already dead. Since she was strangulated to death, there was non else except the appellant to have done it. It was positively that act of the appellant. He took the extreme step on account of suspected infidelity of his wife which he had been harbouring since his marriage.

    33. The other hostile witnesses are Jaipal (P.W. 14) who had seen the appellant and his wife Padmavathi with their child in a Karnataka State Road Transport Corporation Bus, P.W. 9 before whom extra judicial confession was alleged made the appellant, P.Ws. 17 and 18 who were the witnesses for the Panchanamas apart from P.W. 15 who was also the witness of Panchanama but he did not turn hostile. If the statements of these witnesses are excluded, the prosecution case is still not affected on merits inasmuch as the story that the appellant had gone to the house of his father-in- law and taken away his wife and child and that the ultimately stayed in “Ashoka Lodge” at Belgaum where Padmavathi was found dead is not affected. Whether the appellant with his wife and the child had gone to the temple or had stayed with a friend in the night, cannot be said to be essential links in the chain of events leading to the conclusion that the appellant had committed the crime. The appellant was last seen with Padmavathi in Room No. 113 of “Ashoka Lodge” where he had stayed on the fateful day and had left the “Lodge with his child on the pretext that he was going to call his relations as Padmavathi had died of heart-attack. As pointed out earlier, Padmavathi had died of strangulation. The appellant’s presence in the Room immediately before the death of Padmavathi and his conduct in not coming back to the “Lodge” are circumstances strong enough to establish his guilt.

    34. Some dispute appears to have been raised before the High Court as also before us that the hotel records should not be relied upon to indicate that the appellant had stayed in “Ashoka Lodge”.

    35. Ajit (P.W. 2), room-boy of the “Lodge”, in his statement on oath, has given out that the appellant had come with his wife and child to the “Ashoka Lodge” and had taken one Room on the ground-floor for his stay. The necessary entry (Ex.P1(a)) was made by the Manager of the “Lodge” in the “Register of Lodgers”. The appellant had put his signature on the Register which is Ex.P1(b). The appellant, his wife and the child had been taken by the room-boy to Room No. 113 where he also supplied an extra bed. The hotel Manager, though mentioned as a witness in the charge-sheet, was not examined as he had already left the service of the “Lodge”. These facts stand proved by the statement of the room-boy and the High Court has already recorded a finding that the appellant had stayed in Room No. 113 of the “Ashoka Lodge”.

    36. The original records were also placed before us and we have perused those records. Since learned counsel for the appellant contended that the appellant had not stayed in the “Ashoka Lodge”, we looked into the “Register of Lodgers”. It contains the relevant entry against which signature of the appellant also appears. His signature also appears on the “Vakalatnama” filed by him in this appeal. In the presence of the learned counsel for the parties, we compared the signature of the appellant on the “Vakalatnama” with the signature in the “Register of Lodgers”. A mere look at the signatures was enough to indicate the similarity which was so apparent that it required no expert evidence. This comparison was done by us having regard to the provisions of Section 73 of the Evidence Act which provides as under:- S.73. Comparison of signature,

    writing or seal with others

    admitted or proved.- In order to

    ascertain whether a signature,

    writing or seal is that of the

    person by whom it purports to have

    been written of made, any

    signature, writing or seal admitted

    or proved to t satisfaction of the

    Court to have been written or made

    by that person may be compared with

    the one which is to be proved,

    although that signature, writing or

    seal has not been produced or

    proved for any other purpose.

    The Court may direct any

    person present in Court to write

    any words or figures for the

    purpose of enabling the Court to

    compare the words or figures so

    written with any words or figures

    alleged to have been written by

    such person.”

    37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

    38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not power to compare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act. (See : State (Delhi Administration) vs. Pali Ram, AIR 1979 SC 14 = (1979) 2 SCC 158)

    39. We have already recorded above that on the comparison of the signature in the “Register of Lodgers” with the appellant’s signature on the “Vakalatnama”, we have not found any dissimilarity and are convinced that the appellant himself had signed the “Register of Lodgers” in token of having taken Room No. 113 in “Ashoka Lodge” on rent wherein he had stayed with his wife and the child.

    40. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial court, had fully adhered to the principles laid down by this Court in various decisions and there is no infirmity in its judgment.

    41. The circumstance, the conduct and behaviour of the appellant conclusively establish his guilt on no amount of innovative steps by him including sporting a beard and later shaving off the beard and the head could conceal the offence or his identity. It was rightly remarked by the famous Urdu poet, Amir Meenai in a couplet :-

    “Qareeb hai yaro jo Roz-i-Mahshar

    Chhupey ga kuston ka khoon keonkar

    Jo chup Rehegi Zaban-i-Khanjar

    Lahoo Pukarega Aastin Ka”

    42. Translated into English, it will mean :- “On the day of Judgment, you will

    not be able to conceal the killing

    of innocents. If the sword will

    keep silent, the blood stains on

    your sleeves will reveal your

    guilt.”

    43. For the reasons stated above, we find no merit in the appeal which is dismissed. The appellant is no bail. His bail bonds are cancelled. He shall be take into custody forthwith to serve out the life sentence.

  • Comment : In this case the court was faced with facts wherein the deceased husband’s relatives sought to oust the widow from claiming partition – by relying on the specious plea that the widow stood divorced via customary divorce letter, the court held that though S.29(2) HMA expressly saves customary mode of divorce from the effect of section, it has to be specifically pleaded and proved to have all the characteristics of a valid custom. 
    Supreme Court of India
    Subramani And Ors. vs M. Chandralekha on 23 November, 2004
    Equivalent citations: AIR 2005 SC 485, 2005 (1) AWC 307 SC, 2004 (3) BLJR 2247
    Author: A Bhan
    Bench: A Bhan, A Mathur

    JUDGMENT

    Ashok Bhan, J.

    1. This appeal by grant of leave has been filed by the defendants-appellants against the judgment and order of the High Court of Judicature at Madras in Second Appeal No. 11 of 1991, High Court by the impugned judgment has set aside the judgments and decree passed by the courts below and has decreed the suit filed by the plaintiff-respondent herein.

    2. Facts relevant to resolve the controversy in this appeal are:-

    Perianna Gounder (who died during the pendency of the suit) had three sons, namely, Late Natessa Muthu @ Perianna Gounder, Subramani (appellant No. 1) and Kandasamy, Pongiammal and Rajeswari (minor) appellants 2 and 3 are the wife and daughter of Late Natessa Muthu. Plaintiff-respondent M. Chandralekha is the wife of Kandasamy.

    3. According to the plaintiff-respondent (hereafter referred to as the “respondent”) there was a partition in the family in the year 1968 between the father and his three sons. In that Perianna Gounder was allotted ‘A’ schedule property while his three sons were allotted ‘B’ schedule property. Subramani and Kandasamy in the year 1980 purchased ‘C’ schedule property. Thereafter, in the year 1983 Perianna Gounder settled ‘A’ schedule property in favour of Subramani and Kandasamy. ‘D’ schedule property which is an agricultural land was purchased again by the two brothers Subramani and Kandasamy.

    4. Respondent No. 1 was married to Kandasamy in the year 1981. They separated in the year 1983. Kandasamy died on 21.7.1986. Respondent filed the suit for partition and possession of schedule properties ‘A’, ‘B’, ‘C’ and ‘D’ and also claimed mesne profits. It was pleaded that she being the wife of Kandasamy was entitled to the share of Kandasamy in the schedule properties. She claimed 1/2 share in ‘A’, ‘C’ and ‘D’ schedule properties and 1/3^rd share in ‘B’ schedule property. That differences arose between the respondent and Kandasamy due to which the respondent was driven out of the house and all efforts to reunite them failed. A registered maintenance release deed, Ex. B-1, came to be executed on 25.10.1984 in which the respondent on receipt of Rs. 14,000/-released her claim towards maintenance. Later, respondent came to know that while writing Ex. B-1 a recital had been introduced therein that the marriage between the respondent and Kandasamy stood dissolved under the customary law prevalent in the community. It was averred that parties belonged to Vellala Gounder Community and no custom was prevalent in their community to dissolve the marriage under custom. Even if such a recital was there in the aforesaid document, the same did not have any legal effect and the relationship between her and Kandasamy continued to subsist.

    5. Defendants contested the suit. Subramani filed the written statement which was adopted by appellant Nos. 2 and 3. It was contended that Natessa Muthu had died seven years prior to the filing of the suit and not twelve years as alleged in the plaint. That there had been oral partition of ‘B’ schedule property as between the appellants and Kandasamy in the year 1983 and therefore the question of enjoying the ‘B’ schedule property either jointly or in common did not arise. It was admitted that Kandasamy was married to the respondent. It was admitted that Schedule properties ‘A’ & ‘C’ had been purchased/settled in favour of Subramani and Kandasamy, It was denied that these Schedule properties had been purchased by them. It was pleaded by them that Kandasamy had borrowed Rs. 50,000/- from Subramani and incurred debts to the tune of Rs. 90,000/- from third parties. Kandasamy held directed his brother Subramani to discharge all his debts and in lieu thereof take his share in the properties, but before executing any deed to the aforesaid effect Kandasamy committed suicide on 21.7.1986. According to them, Kandasamy had given up his rights over the suit properties and was therefore not possessed of any properties at the time of this death. According to them, marriage between the respondent and Kandasamy had been dissolved as per dissolution deed (Ex. B-1) and the respondent could not take advantage of her own fraudulent act. According to them Kandasamy had committed suicide due to differences with the respondent arid therefore the respondent had no right to seek partition. It was pleaded that respondent had no right to claim partition nor could she ask the Court to overlook the marriage dissolution deed (Ex. B-1).

    6. The Trial Court after considering the oral and documentary evidence came to the conclusion that respondent was entitled to 1/2 share in ‘A’, ‘C’ and ‘D’ schedule properties and 1/3^rd share in ‘B’ schedule property but dismissed the suit on the ground that in the community to which the parties belong the marriage could be dissolved under custom and the marriage between the respondent and late Kandasamy stood dissolved by the marriage dissolution deed Ex. B-1. The judgment and decree passed by the trial Court was upheld in the first appeal. The first Appellate Court concurred with the findings recorded by the trial Court.

    7. Being aggrieved respondent filed the Second Appeal in the High Court At the time of admission of the appeal the following substantial question of law said to be arising in the appeal was framed :-

    “Whether Ex. B-1 dated 25.10.1984 can be construed as bringing about a divorce as contemplated under the provisions of the Hindu Marriage Act and would operate to extinguish the lights of the appellant in her husband’s properties?”

    8. The only point argued before the High Court was whether the document Ex. B-1 dated 25.10.1984 dissolved the marriage between the respondent and late Kandasamy. This is the only point argued before us as well.

    9. It is not disputed before us that as per Hindu Law divorce was not recognized as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognized by custom. Hindus after the coming into force the Hindu Marriage Act, 1955 (for short “the Act”) can seek to put an end to their marriage by either obtaining a declaration that the marriage between them was a nullity on the grounds specified in Section 11 or to dissolve the marriage between them on any of the grounds mentioned in Section 13 of the Act. Section 29 of the Act saves the rights recognized by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnized before or after commencement of the Act. Section 29(2) of the Act reads:

    “Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after commencement of this Act.”

    10. It is well established by long chain of authorities that prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom. The High Court came to the conclusion that the appellants failed to either plead the existence of a custom in their community to dissolve the marriage by mutual consent or to prove the same by leading cogent evidence.

    11. Counsel for the parties have been heard.

    12. Respondent had admitted the execution of document Ex. B-1 but has taken the stand that there was no custom prevalent in their community to dissolve the marriage by mutual consent. In para 5 of the plaint it was pleaded :-

    “It is now understood that while so doing, it has been written in the said deed that the marriage between Kandasamy and the plaintiff was cancelled. The parties are Hindu Vellala Gounder Community. There is no caste – custom of divorce with them. Hence, even if there is such a recital, it has no legal effect. Still, the marriage relationship of the plaintiff and Kandasamy is subsisting.”

    13. The above claim of the respondent was dealt with and answered, by the appellants in para 6 of their written statement wherein it was stated as under :-

    “Plaint paragraph 5 is correct in so far as it relates to the dissolution of marriage between the plaintiff and the late Kandasamy, the dissolution deed, and the payment therefore. Now the plaintiff cannot be allowed to take advantage of her own fraudulent act upon the late Kandasamy and especially after driving him to the brink of disappointment and desolation and finally suicide. The plaintiff has no tenable right to claim petition nor can she ask the court to overlook a substantial document of marriage dissolution deed.”

    14. From a perusal of the above averments in the pleadings, it is clear that defendants-appellants did not plead that in their community marriage could be dissolved under custom. They even failed to respond to the averments made in the plaint that no custom was prevalent in their community to dissolve the marriage under custom. In the absence of such pleadings the Trial Court rightly did not frame an issue as to whether the marriage in the community to which the parties belong could be dissolved under the custom prevalent in their community.

    15. Though no issue was framed on this point the appellants did examine DWs. 2 to 5 to show that in their community marriage could be dissolved under the customary law. We have gone through the statements of these witnesses which have been reproduced verbatim after translation in the order of the Trial Court. On perusal of their testimonies, it cannot be held that custom was prevalent in their community to dissolve the marriage by mutual consent. Neither of these witnesses has stated as to what is the procedure to be followed for dissolving a marriage under the custom prevalent in their community. It is not their case that marriage could be dissolved between the husband and wife in their community by executing a document in the form of an agreement. The agreement B-1 has been signed only by the respondent and her late husband Kandasamy has not signed the same. In the absence of any pleadings that marriage between the husband and wife could be dissolved in their community under custom and in the absence of any satisfactory evidence let in to prove the custom prevalent in the community or the procedure to be followed for dissolving the marriage it cannot be held that marriage between the respondent and her husband stood dissolved by executing the marriage dissolution deed Ex. B-1. It is not proved that the document Ex. B-1 is in conformity with the custom applicable to divorce in the community to which the parties belong. This Court in Yamanaji H. Jadhav v. Nirmala, has held that custom has to be specifically pleaded and established by leading cogent evidence by the person propounding such custom. It was held :-

    “The courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable to divorce in the community to which the parties belong. As per the Hindu law administered by courts in India divorce was not recognized as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognized by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such a custom since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleading by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the Court.”

    [Emphasis supplied]

    16. We respectfully agree with and follow the view taken by this Court in Yamanaji H. Jadhav’s case (supra).

    17. Accordingly, we find no merit in this appeal and dismiss the same with no order as to costs.

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